By Lucky William Akuda, Esq.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the supreme law of the land. By virtue of section 1(1) of the Constitution, its provisions are binding on all authorities and persons throughout the Federal Republic of Nigeria, while section 1(3) unequivocally provides that where any other law is inconsistent with the Constitution, the Constitution shall prevail and the inconsistent law shall, to the extent of the inconsistency, be void.
In relation to elections, the Constitution itself prescribes the constitutional timetable within which elections are to be conducted. For instance, sections 132(2) and 178(2) of the Constitution provide that presidential and governorship elections shall be held not earlier than 150 days and not later than 30 days before the expiration of the incumbent’s tenure. These constitutional timelines are mandatory and cannot be altered by ordinary legislation.
Pursuant to the constitutional framework, the Electoral Act 2022 merely provides the procedural timetable for the nomination and submission of candidates by political parties. Specifically, section 29(1) of the Electoral Act 2022 requires every political party to submit to the Independent National Electoral Commission (INEC) the list of its nominated candidates not later than 180 days before the date appointed for the general election. Similarly, section 29(3) mandates INEC to publish the personal particulars of candidates within seven days of receipt, while section 31 provides that a candidate may withdraw his or her candidature, with the political party required to notify INEC not later than 90 days before the election.
Accordingly, while the Electoral Act is competent to prescribe procedural deadlines for the submission, publication, withdrawal, and substitution of candidates, it cannot validly enact provisions that are inconsistent with, or that effectively alter, the constitutional timetable established by the Constitution. Any statutory provision that purports to extend, reduce, or otherwise contradict a timeline expressly fixed by the Constitution would be unconstitutional and liable to be declared null and void by the courts pursuant to section 1(3) of the Constitution.
Therefore, the legal position is that the Electoral Act must operate within the confines of the Constitution. It supplements the constitutional framework by regulating electoral procedures but cannot override, amend, or contradict the express provisions of the Constitution. Any conflict between the Constitution and the Electoral Act must invariably be resolved in favour of the Constitution, consistent with the doctrine of constitutional supremacy.
The provisions of sections 77(5), 77(6), 77(7), and 84(2) of the Electoral Act 2026 can be challenged on the ground that they are inconsistent with the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which is the supreme law of the land. Indeed, the Court of Appeal recently declared those provisions unconstitutional for substantially the same reasons, unless and until that decision is set aside by the Supreme Court, it represents the prevailing pronouncement of the Court of Appeal on the constitutional validity of those provisions.
The constitutional counter-arguments are as follows:
1. Section 1(1) and (3) of the 1999 Constitution – Supremacy of the Constitution
Section 1(1) declares the Constitution supreme, while section 1(3) provides that where any other law is inconsistent with the Constitution, the Constitution shall prevail, and the inconsistent law shall be void to the extent of its inconsistency.
2. Section 221 of the Constitution
This section vests the sponsorship of candidates exclusively in political parties. It recognises political parties as the constitutional vehicles for nominating candidates for elections. By prescribing rigid statutory conditions that limit whom a political party may present or the register it must exclusively rely upon, sections 77(5), 77(6), and 77(7) amount to legislative interference with a constitutional function reserved to political parties.
3. Section 222 of the Constitution
This section sets out the constitutional requirements for the organisation and operation of political parties. Once a political party satisfies these constitutional requirements, the National Assembly cannot impose additional restrictions that substantially curtail the party’s constitutional autonomy beyond what the Constitution itself permits.
4. Sections 65, 66, 106, 107, 131, 137, 177 and 182 of the Constitution
These provisions comprehensively prescribe the constitutional qualifications and disqualifications for elective offices. The National Assembly lacks the power to introduce additional qualifications or disqualifications through ordinary legislation. Consequently, statutory provisions that prevent an otherwise constitutionally qualified aspirant from contesting merely because his or her name does not appear on a particular membership register, or because a party failed to comply with a statutory procedural requirement, effectively add qualifications not contemplated by the Constitution.
5. Section 40 of the Constitution
This guarantees the right to freedom of association, including the right to belong to a political party. Any statutory provision that unduly restricts a political party’s internal affairs or its members’ participation may be challenged as an unjustifiable infringement of this constitutional right.
Specifically:
– Section 77(5) (restricting voting and candidature in party primaries to persons whose names appear on the submitted register) may be inconsistent with sections 40, 221, and the constitutional qualification provisions.
– Section 77(6) (prohibiting the use of any register other than the one submitted to INEC) constitutes an undue interference with the internal administration of political parties, contrary to sections 221 and 222.
– Section 77(7) (disqualifying a political party from fielding candidates for failure to submit its register) imposes a penalty not contemplated by the Constitution and effectively deprives the party of its constitutional right to sponsor candidates.
– Section 84(2) (to the extent that it limits or dictates the mode of nomination of candidates) interferes with the constitutional autonomy of political parties to conduct their internal affairs and nominate candidates.
For these reasons, the Court of Appeal held that sections 77(5), 77(6), 77(7), and 84(2) of the Electoral Act 2026 are inconsistent with the 1999 Constitution, particularly sections 221 and 222, and are therefore unconstitutional and void to the extent of their inconsistency.
In this article